2006 PLP 1626 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners-plaintiffs impugn the concurrent decrees of the learned trial Court, dated 14-6-1997 and of the learned appellate Court, dated 17-10-2001 whereby a suit filed by them seeking permanent injunction has been dismissed.

2. The suit property, admittedly, was owned by Ahmad Bukhsh (respondent No.1). It is the case of the petitioners-plaintiffs that Ahmad Bukhsh sold the property to them vide mutation No. 500 sanctioned on 27-11-1982 and that they are in continuous cultivating possession of the same since then.

3. The respondents Nos. 2 and 3 also filed a declaratory suit against the petitioners and Ahmad Bukhsh claiming that Ahmad Bukhsh had sold the property to them vide consent decree (Exh.D-1), dated 9-2-1982. The learned Courts below have held that by virtue of the decree (Exh.D-1), Ahmad Bukhsh respondent had divested himself of title and, therefore, could not have sold the property to the petitioners through mutation No.500. The appellate Court has, however, held that the petitioners are entitled to recover a sum of Rs.1,13,500 paid by them to Ahmad Bukhsh.

4. Learned counsel for the petitioners has argued that the decree (Exh.D-1) was collusive but even if this was not so, the respondents Nos.2 and 3 were obliged to have their title entered in the revenue record. This, admittedly, was not done by the respondents and, as a result, the petitioners had no notice that title had passed from Ahmad Bukhsh in favour of respondents Nos. 2 and 3.

5. Learned counsel for the petitioners also argued that the respondents Nos. 2 and 3 did not take physical possession of the suit-land which, as noted above, was in the cultivating possession of the petitioners even prior to the decree (Exh. D-1). Learned counsel for respondents Nos. 2 and 3 attempted to show that possession had been taken by respondents Nos. 2 and

3. To support this contention he referred to the rapt roznamcha (Exh.D-4). I have gone through this document and note, firstly, that only symbolic possession "qabza malkana" was delivered to respondents Nos. 2 and

3. The other documents on record show the petitioners to be in possession of the suit property. Upon being questioned, learned counsel- for the respondents was unable to explain as to why the respondents did not take possession on 9-2-1982 when Ahmad Bukhsh had conceded their claim. I may add that even the symbolic possession, noted in the rapt (Exh.D-4), is dubious in nature and detracts from the veracity of the case set up by respondents Nos.2 and

3. If indeed, the property had been sold to the respondents by Ahmad Bukhsh and he had, as alleged, conceded the suit filed against him by respondents Nos. 2 and 3, there would have been no need to resort to execution of the consent decree because possession would have been delivered by Ahmad Bukhsh voluntarily and this fact would have been submitted in Court and even before the revenue functionaries.

6. Inspite of the above circumstances, I was prepared to appoint a local commission to determine as to which party was in possession of the suit-land. While learned counsel for the petitioners readily agreed to this suggestion, learned counsel for respondents Nos. 2 and 3 expressed reluctance on the ground that the land was barani and it would, therefore, be difficult for a local commission to determine as to which party was in possession of the same.

7. Possession of the property, in my opinion, is of the utmost relevance in this case. Had the respondents Nos. 2 and 3 taken possession of the suit property or in the alternate had they got the decree (Exh.D-1) incorporated in the revenues record, the petitioners would not have been able to establish that they were bona fide purchases of the property for valuable consideration. I am clear that on account of the failure of the respondents either to take physical possession or to get their title reflected in the revenue record, the title of the petitioners acquired from Ahmad Bukhsh could not have been defeated. Here it is worth nothing that Ahmad Bukhsh was the owner of the suit property for many years prior to the decree (Exh.D-1) and remained the ostensible owner thereof even after the passing of the said decree. The petitioners made the requisite inquiry from the revenue record before they purchased the property from Ahmad Bukhsh. They are, therefore, entitled to the protection of their title under section 41 of the Transfer of Property Act.

8. Faced with the above situation, learned counsel for respondents Nos. 2 and 3 attempted to argue that the petitioners had failed to prove the sale made in their favour by Ahmad Bukhsh. Both Courts below have, however, concurrently held that the sale in favour of the petitioners had been proved. I do not find any reason to interfere in this finding of fact concurrently arrived at by the learned Courts below.

9. Unfortunately, the learned Courts below have not given due weight to the facts noted above. The impugned decrees, as such, are based on a non-reading of evidence. The same, therefore, are not legally sustainable and are set aside. As a result, the suit of the petitioners-plaintiffs seeking permanent injunction is decreed while the suit filed by the respondents Nos. 2 and 3 is dismissed. F.B./G-37/L Petition allowed.